But it’s not always the case, and that doesn’t always relate to the employee’s conduct. Sometimes, it becomes apparent that for whatever reason, the employee is not capable of doing the job to the standard expected.
That may be to do with one of two main reasons: their skills/aptitude or their physical or mental health. This article looks at the latter.
What does the law say?
The law says that an employer can fairly dismiss an employee for five reasons:
- a reason related to an employee’s conduct
- a reason related to an employee’s capability or qualifications for the job
- redundancy
- a statutory duty or restriction prohibits the employment continuing
- Some Other Substantial Reason (SOSR) which justifies the dismissal
Disciplinary or capability?
When issues arise about an employee’s performance, the employer needs to address whether it’s due to capability or whether it’s a disciplinary issue. Capability addresses situations where the employee ‘cannot’ rather than ‘will not’ perform.
The employee’s line manager will need to hold an informal conversation with the employee to see if the difference can be identified. The manager should have been trained in how to conduct such conversations in a way that emphasises the employer wants to help. A combative or negative tone may give rise to doubts in the employee’s mind about their future with the company. Employment tribunals regularly hear cases where the claimant was able to show that a decision to dismiss was predetermined and therefore procedurally unfair.
The capability policy
As is often the case with many employment issues, a policy will be crucial when addressing questions of capability. The policy needs to set out the steps the employer will take if an employee underperforms – or is unable to perform – due to ill health.
Using a policy will mean that the employer handles every case fairly and consistently – crucial when avoiding claims of discrimination.
The Medical capability procedure
This consists of several separate steps. At any point, it may be that the matter is concluded satisfactorily, in which case further steps will not be needed.
Step 1: Investigate the cause
Step 2: Put reasonable adjustments in place
Step 3: Hold Absence Review meeting if applicable
Step 4: Hold Medical Capability meeting (ensuring the employee is aware that dismissal may be one of the outcomes considered)
Step 5: Inform the employee of the outcome
Step 6: Appeal
Undertaking a Medical Capability process
Each employee and situation will be different – therefore, the employer must always consider cases on their individual merits. They will also need to balance this with the needs of the business – it isn’t a “one size fits all” solution.
All employers should ensure they are aware of, and have considered: ;
- who is considered to have a disability by law;
- how they should support employees with disabilities.
All employers must follow a fair and robust process when considering a dismissal due to Medical Capability.
The employer should ensure that all information is documented and that they have obtained medical advice before making any decisions – they may be required to provide this information to a Tribunal in the event of a claim being made against them.
At the point of dismissal, the employer should consider :
- The adjustments made and the effect on the employee’s ability to undertake their role and/or improvements to their attendance
- Any other suitable roles which could be offered to the employee an alternative to dismissal
- The option of re-distributing some elements of the role
- The effect of the employee’s ongoing absence
- There is medical evidence to support the view that the employee is unlikely to return to work
- The possibility of ill health retirement
- Referral to Group Income Protection schemes if the business has one in place
- Adjustments made to the Absence Procedure to account for an employee’s disability
What are the alternatives to a Medical capability dismissal?
Dismissing an employee on the grounds of Medical capability is a serious step and one that should, generally, be taken as a last resort. Something to consider before that stage is the possibility of an alternative role for the employee where their capability issues might not be such an obstacle to continued employment.
Indeed, if a dismissal on the grounds of Medical capability leads to a tribunal claim against the employer, one thing that might be looked at is whether the employee was given the chance to agree to an alternative role. The answer may influence whether the dismissal was fair. The claim may be more likely to succeed if the employee can show that no alternative employment was offered for consideration before the decision was taken to dismiss.
Reasonable adjustments
It may be that a capability investigation uncovers issues with the employee’s performance that are connected to disability. At this point, the employer needs to pause and consider carefully how they’ll proceed as there is potential for discrimination claims if it’s not handled correctly. Indeed, this could well be the time to get legal advice if there’s any uncertainty about how to handle the situation.
If the employee does have a disability, then the employer will need to look into the possibility of making reasonable adjustments to help them carry out their duties.
It may also be necessary to obtain medical advice on the employee’s condition, including a report from their GP or Occupational Health.
How can we help?
The process of conducting a Medical capability investigation and review is involved and more detailed than we can go into in this blog post. Our experienced employment lawyers and advisors can help guide you through the steps you need to take to ensure you are doing all you can for your employee and at the same time, keeping your business safe.